Dolan v. Continental Cas. Co.

• Decision Date: 10 July 1930
• Citation: 289 P. 1057,133 Or. 252
• Parties: DOLAN v. CONTINENTAL CASUALTY CO.
• Court: Oregon Supreme Court

289 P. 1057

133 Or. 252

DOLAN v. CONTINENTAL CASUALTY CO.

Supreme Court of Oregon, En Banc.

July 10, 1930

Appeal from Circuit Court, Baker County; C. H. McColloch, Judge.

Action by Nina T. Dolan against the Continental Casualty Company. Defendant filed an amended answer confessing liability, and from judgment for plaintiff on the pleadings, plaintiff appeals, claiming attorneys' fees.

Modified and affirmed.

This action was instituted to collect the sum of $2,000 on an insurance policy on the life of plaintiff's husband. Plaintiff secured judgment for the full sum of the policy and $300 attorneys' fees. Defendant appealed to this court where the judgment was affirmed. 279 P. 855. Afterwards, on October 15, 1929, on petition for rehearing, the judgment was reversed and remanded for a new trial. 281 P. 182. December 17, 1929, the court denied plaintiff's petition for rehearing but modified its previous opinion by holding that "We grant the defendant [The Continental Casualty Company] a new trial coupled with the condition that the costs abide the result of a final judgment, and our previous order will be so amended." 283 P. 15, 16.

When the action came on for retrial in the circuit court defendant was permitted to file an amended answer in which it confessed its liability for the amount claimed by plaintiff plus the costs of the trial in the circuit court and in this court, and tendered into court the amount thereby due, to wit, $2,668.40. Defendant then moved for judgment on the pleadings, and the motion was allowed over objection of plaintiff. The sole controversy is over the question of whether plaintiff is entitled to attorneys' fees.

J. T. Donald, of Baker (George Donart, of Weiser, Idaho, and Nichols, Hallock & Donald, of Baker, on the brief), for appellant.

A. S. Grant, of Baker (A. A. Smith, of Baker, on the brief), for respondent.

COSHOW, C.J. (after stating the facts as above).

We have in mind that defendant refused, for technical reasons, to pay the amount claimed by plaintiff. The judgment granted plaintiff was set aside because of an error committed by the court during the progress of the trial. Defendant claims the right now of depriving plaintiff of the amount allowed her as attorneys' fees because it has tendered into court the amount of her claim with interest, the costs on the former trial and of the trial in this court. The law prescribes: "Whenever any suit or action is brought in any courts of this state upon any policy of insurance of any kind or nature whatsoever, the plaintiff, in addition to the amount which he may recover, shall also be allowed and shall recover as part of said judgment such sum as the court or jury may adjudge to be reasonable as attorney's fees in said suit or action; provided, that settlement is not made within six months from date proof of loss is filed with the company; provided further, that if a tender be made by a defendant in any such suit or action and the plaintiff's recovery shall not exceed the amount thereof, then no sum shall be recoverable as attorney's fees." Or. L. § 6355, as amended by Gen. Laws of 1927, c. 184.

The meaning of the word "tender," when said statute was enacted, was defined by our statute, Or. L. § 574. The general laws of the state having defined the word "tender," it will be presumed, on the enactment of a new statute using the word "tender," that the word as defined by the statute is intended. There is no conflict between the said section 6355, as amended, and said section 574. The former section does not attempt to define "tender," and that...